SMT Y M SHAILAJA v. SMT: SARITHA M, ADVOCATES)

(BY SRI: H KANTHA RAJA AND SMT: SARITHA M, ADVOCATES) AND: C RAMANJANEYA S/O CHANDRAPPA AGED ABOUT 50 YEARS OCC: BUSINESSMAN D.NO.4119/7 TALUR NINGAMMA NILAYA BIET MAIN ROAD,MCC BLOCK DAVANAGERE. ...RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 28.5.2012 IN EXECUTION CASE NO.336/2007 ON THE FILE OF THE 2 SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, PRODUCED VIDE ANNEXURE-A BY ISSUING A WRIT OF CERTIORARI AND CONSEQUENTLY ALLOW I.A.NO.IV FILED BY THE PETITIONER UNDER ORDER XXI RULE 26 READ WITH SECTION 151 OF CPC PRODUCED VIDE ANNEXURE-E. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

O R D E R The plaintiff filed a suit in O.S.No.385/2005 for specific performance. The same was decreed. The defendant was directed to execute the registered Sale Deed in respect of the suit schedule property. Aggrieved by the same, the defendant filed Misc. No.34/2007 under Order IX Rule 13 of CPC seeking to set aside the judgment and decree passed in O.S.No.385/2005. An application under Section 5 of the Limitation Act was also filed seeking condonation of delay in filing the petition. I.A.No.4 was also filed seeking stay of further proceedings in the execution petition till the disposal of the Misc. petition. The Court 3 below rejected the same. Hence, the present petition is filed.

The Court below while considering the said application has in detail culled out the manner in which the proceedings have taken place and considered the fact that the judgment and decree passed in the suit has not been challenged in an appeal by the judgment debtor. It was the contention of the judgment debtor that it is an ex-parte decree, but the same was proved to be incorrect in view of the certified copy of the entire order sheet in the suit which was produced before the Court below. The order sheet discloses that though at the first instance, the judgment debtor remained ex- parte, subsequently, she put-in her appearance in the suit by filing an application under Order IX Rule 7 of CPC which came to be allowed. She was permitted to participate in 4 the suit and she has actively done so. She was represented by a counsel. It clearly shows that she was not placed ex-parte. Under these circumstances, the Court below held that it cannot be said that the judgment debtor was unaware of the judgment and decree passed in O.S.No.385/2005 and hence, without challenging the judgment and decree, the judgment debtor cannot be permitted to put forward a ground to stay the further proceedings in execution petition.

Considering the reasoning given by the Court below while dismissing the application, I do not find any error committed by the trial Court that calls for interference. Substantive reasons are given by the Court below to reject the application.

It is further contended by the 5 petitioner's counsel that there has been a lapse on the part of the petitioner and the same may be condoned. The question of condonation would arise only when the error committed is bona fide and that would not appear to be the case on hand. The specific plea taken by the petitioner is that she remained ex-parte, which is found to be false by the order sheet in the suit. She has actively participated in the proceedings and hence, it is incorrect on her part to say that she did not participate and the decree obtained was ex-parte. Hence, the submission made by the learned counsel for the petitioner is unacceptable.